Abstract

This Reply responds to methodological criticisms of an earlier empirical study of panel effects on the United States Court of Appeals, Deliberation and Strategy on the United States Courts of Appeals, which appeared in the University of Pennsylvania Law Review. That study found that federal appellate judges appeared to be more or less open to influence by their panel colleagues depending upon how the preferences of the panel members align with the preferences of the circuit as a whole. On the other hand, their willingness to avoid dissents and go along with their panel colleagues seemed unaffected by their relative alignment with the preferences of the Supreme Court. This Reply explains that this study was not intended to be a test of Frank Cross and Emerson Tiller’s whistleblower theory, although its results are to some extent inconsistent with that theory. It further discusses other methodological choices made in the original study – for example, the use of voting outcomes to measure panel effects; the decision to examine ideological alignment between a panel and the reviewing court; and the reliance on appellate cases limited to a particular subject matter area.